|
This model Contract is to be used for purchasing services. If you want to purchase goods, you should consult with the Attorney General’s Office. If you are not sure whether you are purchasing goods or services, you should consult with your agency’s attorney.
11 IAC chapters 106 and 107 define services as: “Service” or “services” means work performed for a department
or establishment or for its clients by a service provider and includes, but
is not limited to: 1. Professional or
technical expertise provided by a consultant, advisor or other technical or
service provider to accomplish a specific study, review, project, task, or
other work as described in the scope of work.
By way of example and not by limitation, these services may include
the following: accounting services;
aerial surveys; aerial mapping and seeding; appraisal services; analysis and
assessment of processes, programs, fiscal impact compliance, systems and the
like; auditing services; communications services; services of peer reviewers,
attorneys, financial advisors, and expert witnesses for litigation;
architectural services; information technology consulting services; services
of investment advisors and managers; marketing services; policy development
and recommendations; program development; public involvement services and
strategies; research services; scientific and related technical services;
software development and system design; and the services of underwriters,
physicians, pharmacists, engineers, and architects; or 2. Services provided
by a vendor to accomplish routine functions.
These services contribute to the day–to–day operations of state
government. By way of example and not
by limitation, these services may include the following: ambulance service;
charter service; boiler testing; bookkeeping service; building alarm systems
service and repair; commercial laundry service; communications systems
installations servicing and repair; court reporting and transcription
services; engraving service; equipment or machine installation; preventive
maintenance, inspection, calibration and repair; heating ventilation and air
conditioning (HVAC) system maintenance service; janitorial service; painting;
pest and weed control service; grounds maintenance, mowing, parking lot
sweeping and snow removal service; towing service; translation services; and
travel service. Contracts for services may be awarded to individuals, joint ventures, partnerships, corporations, or non-profit organizations. Services are generally performed off-site whenever possible at an established place of business.
This model Contract for services is annotated with comments explaining and commenting upon various provisions of the contract. The purpose of the annotations is to explain the reasons why the provision is important, drafting considerations, suggested alternative language, and other pitfalls contract drafting.
This model Contract for services is designed to be used for a wide variety of personal services with minimal changes except as provided for in the annotations. This Contract is also designed to comply with Executive Order Number 25 and 11 IAC chapters 106 and 107, which apply to service contracts with a starting date on or after October 1, 2002. Before using this model Contract, you should make sure that you have complied with any relevant competitive bidding process. |
Section 1 Identity of the Parties
Section 2 Purpose
Section 3 Duration of Contract
Section 4 Definitions
Section 5 Scope of Services
5.1 Scope of Services
5.2 Industry Standards
[5.X Key Personnel]
5.3 Non-Exclusive Rights
6.1 Pricing
6.2
6.3 Delay of Payment Due to Contractor’s Failure
6.4 Set-Off Against Sums Owed by the Contractor
7.1 Immediate Termination by the Agency
7.2 Termination for Cause
7.3 Notice of Default
7.4 Termination Upon Notice
7.5 Termination Due to Lack of Funds or Change in Law
7.6 Remedies of the Contractor in Event of Termination by the Agency
7.7 The Contractor’s Termination Duties
8.1 Access to Confidential Data
8.2 No Dissemination of Confidential Data
8.3 Subpoena
8.4 Reporting of Unauthorized Disclosure
8.5 Survives Termination
9.1 By the Contractor
9.2
Indemnification by the State of
9.3 Survives Termination
10.1 Insurance Requirements
10.2 Types and Amounts of Insurance Required
10.3 Certificates of Coverage
11.1 Fidelity Bond
11.2 Performance Bond
12.1 Project Manager
12.2 Review Meetings
12.3 Reports
12.4 Problem Reporting Omissions
12.5 Change Order Procedure
Section 14 Intellectual Property
15.1 Construction of Warranties Expressed in this Contract with Warranties Implied by Law
15.2 Concepts, Materials, and Works Produced
15.3 Professional Practices
15.4 Conformity with Contractual Requirements
15.5 Authority to Enter Into Contract
15.6 Obligations Owed to Third Parties
15.7 Title to Property
15.8 Industry Standards
15.9 Technology Updates
16.1 Independent Contractor
16.2 Incorporation of Documents
16.3 Order of Priority
16.4 Compliance with the Law
16.5 Amendments
16.6 Third Party Beneficiaries
16.7 Choice of Law and Forum
16.8 Assignment and Delegation
16.9 Use of Third Parties
16.10 Integration
16.11 Headings or Captions
16.12 Not a Joint Venture
16.13 Joint and Several Liability
16.14 Supersedes Former Contracts or Agreements
16.15 Waiver
16.16 Notice
16.17 Cumulative Rights
16.18 Severability
16.19 Time is of the Essence
16.20 Authorization
16.21 Successors in Interest
16.22 Record Retention and Access
16.23 Solicitation
16.24 Obligations Beyond Contract Term
16.25 Counterparts
16.26 Additional Provisions
16.27 Further Assurances and Corrective Instruments
16.28 Delay or Impossibility of Performance
[Federal Clauses:
16.29 Certification regarding sales and use tax
16.30 Suspension and Debarment
16.31 Lobbying Restrictions
16.32 Tobacco Smoke Prohibited
16.33 Certified Audits
16.34 Drug Free Work Place]
__ Certification Regarding Lobbying (for Contracts, Grants, Loans, and Cooperative Agreements)
__ Certification Regarding Lobbying (for Loan Guarantees and Loan Insurance)
__ Certification of Compliance with Pro-Children Act of 1994
__ Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion -- Lower Tier Covered Transactions
Additional Provisions (Liquidated Damages)
X.1 General
X.2 Notification of Liquidated Damages
X.3 Conditions for Termination of Liquidated Damages
X.4 Severability of Individual Liquidated Damages
X.5 Waivers of Liquidated Damages
X.6 Payment of Liquidated Damages
X.7 Applicability of Liquidated Damages
This Contract for [type of services] Services is between [name of the agency] and [name of the contractor]. The parties agree as follows:
GENERAL NOTES/INSTRUCTIONS
The model contract may be changed from time to time. Please always refer to the most recent version that will be available at _________________.
· If you intend to request a contract review by the AG’s Office, the review must be done prior to obtaining any signatures on the Contract. Once signatures are obtained, the Contract is “executed,” and any subsequent review by the AG’s office serves no purpose.
· The Contractor’s signature should be obtained prior to the Agency signature. Do not send a signed Contract to the Contractor for their signature. The Agency should be the last party to sign the Contract. Provisions in the Contract may change as a result of negotiations; therefore, signatures should occur after negotiations.
· All parties to the Contract must sign amendments to an executed Contract.
· 11 Iowa Administrative Code rule 106.12(2)(18), which applies to service contracts with a starting date on or after October 1, 2002, requires that all parties to the contract must sign the contract before performance of services begins, unless the contract was the result of an emergency procurement.
Throughout the model contract you will find words or instructions in bold brackets, for example: [Date]. This indicates that you must enter some information (fill in the blank), or change the existing information. After you have entered the necessary information, remove the brackets and bold type. Other bold type, without the brackets, represents either a heading or information that is being emphasized.
Much of the language in this model contract is standard and required. Do not alter or delete any language unless an annotation indicates the language is optional, or you have contacted your legal counsel and received authorization for changes. If language is not applicable to your contract, you should delete such language, as opposed to adding a “Not Applicable” memo.
|
SECTION 1. IDENTITY OF THE PARTIES
1.1 The
1.2 [full legal name of the Contractor] (“Contractor”) [the Contractor’s business form] is
organized under the laws of the state of [state
where the Contractor is organized or incorporated] and authorized to do
business in the state of
You should make sure the Agency identified in Section 1.1 is the appropriate entity with legal authority to enter into the Contract.
The model Contract refers to the other party as “Contractor.” Other terms, such as “Provider” or “Vendor” or short form of the party’s name, can be used instead, depending upon your preference, however, pick a term and use that term consistently throughout the Contract.
It is important to identify the Contractor’s business form such as a sole proprietorship, limited liability partnership, limited liability corporation, professional corporation, corporation or nonprofit corporation. Please note, however, that there is no requirement that the Contractor must be an Iowa-based business.
SECTION 2. PURPOSE
The parties have entered into this Contract for the purpose of retaining the Contractor to provide: [enter a brief description of the product or services to be provided].
|
This section should be a brief summary of the services to be provided by the Contractor. |
SECTION 3. DURATION OF CONTRACT
The term of this Contract shall be [enter beginning date] through [enter ending date], unless terminated earlier in accordance with the Termination section of this Contract. The Agency shall have the option to renew this Contract for up to [enter number of possible additional 1 year extensions] additional one (1)-year extensions by giving the Contractor written notice of the extension decision at least sixty (60) days prior to the expiration of the initial term or renewal term.
|
11 IAC 106.11(18) provides that “[a] service contract,
including all optional renewals, shall not exceed a term of six years unless
the department or establishment obtains a waiver of this provision pursuant
to 106.16(18).” One reason state
agencies use the initial term and renewal term approach is that it gives the
agency the ability to gracefully extricate itself from a bad arrangement by
not renewing the Contract after the initial term. If your Contract resulted from a
competitive bidding process, the term of the Contract and any allowable
extensions must be as stated in the RFP. |
SECTION 4. DEFINITIONS
|
The following words shall be defined as set forth below: Include this section in the Contract, especially if the scope of services section includes terms not defined within the Contract or RFP (if applicable) that non-agency persons may not be familiar with, especially acronyms. Include all definitions within this section in alphabetical order. Once you have defined a term it must be capitalized throughout the remainder of the contract text. Below are examples of the types of definitions that may be necessary and an acceptable format. These examples are for explanatory purposes only. Add and delete as necessary to fit your particular Contract. If this definition section is not necessary, delete it.
4.1 Bureau shall mean the ...
4.2 Contract shall mean all parts of this Contract including, without limitation and by way of example, the first portion of this Contract and the exhibits and attachments to this Contract.
4.3 Contract Administrator shall mean the primary point of contact for the State and the liaison between the Agency and the Contractor.
4.4 Proposal shall mean the response by the Contractor to the RFP No. [enter RFP number], including any attachments, appendices, clarifications, addenda or other writings.
4.5 RFP
shall mean Request for Proposal No. [enter
RFP number], as issued by the Agency on [enter date issued], including any attachments, appendices,
clarifications, addenda or other writings. |
SECTION 5. SCOPE OF SERVICES
|
This is one of the most important sections of the Contract. This section should contain a clear explanation of what work the Contractor will be doing as well as identify reporting requirements (what reports, format, how often, to whom) and performance measures. Indicate if regular meetings between the Contractor and Agency staff are required, how often etc. If there is to be approval of performance by the Agency, this should also be included here. If the Contractor must provide a right of appeal to clients, add this as a requirement to this section. If maintenance support and training is required of the Contractor, add the specifics of these to this section.
The Scope of Services must be complete and descriptive of the performance requirements since it will include standard by which the Contractor’s performance will be measured. Failure to do so will make it more difficult for the Agency to enforce the expectations of the Agency.
The Accountable Government Act requires Agencies to
include clauses in three interrelated categories in their service
contracts: (1) payment terms, (2)
monitoring performance, (3) and reviewing performance. Because Agencies need to tie the amount or
basis for paying a Contractor to the Contractor’s performance under the
contract, the scope of services should precisely describe the scope and
timing of the work to be performed under the contract and the criteria under
which satisfactory performance will be measured. The scope of services section is also often
the most logical place to include monitoring and review provisions because
those provisions will sometimes require activities and information from the
Contractor for the Agency to monitor and review the Contractor’s
performance. Chapter 10 of the Service
Contracting Guide provides additional information on the clauses required by
the Accountable Government Act.
When the Contract ensues from
an RFP, do not simply refer to the bid proposal. Define the scope of services in detail and
include language incorporating the RFP and the bid proposal as a part of the
Contract in the Contract Administration section. If the scope of services is contained in an attachment/exhibit rather
than the body of the Contract, be sure to attach the final version of that
attachment/exhibit to the Contract. If
the scope of services is included in the body of the Contract rather than
attached as an exhibit, delete the bracketed sentence in bold in Section 5.1. The format below is simply an example.
|
5.1 Scope of Services. The Contractor shall provide the following services in accordance with the defined performance criteria as set forth below [or in Exhibit [A] attached hereto and made part of this Contract by this reference].
5.1.1
5.1.2
5.1.3
5.2 Industry Standards. Services rendered pursuant to this Contract shall be performed in a professional and workmanlike manner in accordance with the terms of this Contract and the standards of performance considered generally acceptable in the [insert type of industry] for similar tasks and projects. In the absence of a detailed specification for the performance of any portion of this Contract, the parties agree that the applicable specification shall be the generally accepted industry standard.
|
If you are buying services from an industry that has generally accepted standards of services, you should use this subsection. If there are no accepted industry standards for the type of services you are buying, you may delete this subsection. |
5.X Key
Personnel. In some circumstances it will be important to the
Agency that certain key people identified in the Contractor’s proposal to the
Agency actually do the work on the Contract or remain involved in the project
throughout the term of the Contract. IF
this is the case, you may want to address the issue in the Contract. Any contractual provisions on the issue,
however, must be very carefully drafted to so that the clause does not
undermine the Contractor’s status as an independent contractor. If you believe the continued involvement of
key contractor personnel is important for your particular contract, you should
ask your Agency’s Assistant Attorney General to help you draft an appropriate
provision.
5.3 Non-Exclusive Rights. This Contract is not exclusive. The Agency reserves the right to select other contractors to provide services similar or identical to the Scope of Services described in this Contract during the term of this Contract.
|
This clause is necessary to alert the Contractor that this Contract does not guaranty that the Contractor is the exclusive provider of the service for the agency. It is particularly important to include this provision in performance based contracts. DO NOT ALTER THIS PROVISION UNLESS YOU CONSULT WITH YOUR AGENCY’S ATTORNEY FIRST. |
SECTION 6. COMPENSATION
|
There are many different types of compensation arrangements available for use in services contracts. The Accountable Government Act requires Agencies to include a payment clause that ties payment to performance unless the Agency obtains special permission to use different terms and conditions in its contract(s). The rules implementing the Accountable Government Act provide a non-exhaustive list of examples of the types of clauses that may be used to satisfy this requirement. This list includes provisions that provide for (1) a base fee and an at risk fee, (2) a minimum payment plus incentives and/or disincentives, (3) a straight contingency fee, (4) a retainage, (5) a base fee plus a contingent fee, or (6) another payment clause that effectively ties payment to the Contractor’s performance under the contract. Chapter 10 of the Service Contracting Guide provides additional information on the different types of payment clauses.
When drafting compensation
provisions, keep in mind that the State of |
6.1 Pricing. The Contractor will
be paid for the services described in the Scope of Services [describe how much the Contractor will be
paid]. [If you would prefer, you may attach a pricing exhibit to the Contract
describing the cost for services. The
pricing for the services provided under the Contract are set forth in Exhibit
B.]
6.2
Unless otherwise agreed in writing by the parties, the Contractor shall not be entitled to receive any other payment or compensation from the State for any goods or services provided by or on behalf of the Contractor under this Contract. The Contractor shall be solely responsible for paying all costs, expenses and charges it incurs in connection with its performance under this Contract.
|
While there is no statute or administrative rule imposing a monthly billing, monthly billings is a standard provision in government contracts. On a practical level, monthly billings permit the Agency to monitor the Contractor’s progress on satisfying its contractual obligations. In other words, monthly billings can be one tool to check the Contractor’s progress on completing the contract before it is too late to salvage the project. |
6.3 Delay of Payment Due to Contractor’s Failure. If the Agency in good faith determines that the Contractor has failed to perform or deliver any service or product as required by this Contract, the Contractor shall not be entitled to any compensation under this Contract until such service or product is performed or delivered. In this event, the Agency may withhold that portion of the Contractor’s compensation, which represents payment for service or product that was not performed or delivered.
6.4 Set-Off Against Sums Owed by the Contractor. In the event that the Contractor owes the State any sum under the terms of this Contract, any other Contract, pursuant to any judgment, or pursuant to any lack the State may set off the sum owed to the State against any sum owed by the State to the Contractor in the State’s sole discretion, unless otherwise required by law. The Contractor agrees that this provision constitutes proper and timely notice under the law of setoff.
SECTION 7. TERMINATION
|
These provisions deal with the
ability of the Agency to terminate the Contract before its natural expiration
when the Contractor breaches the Contract.
It is very important that such a provision be included in the Contract
to establish what constitutes an event of default and what remedies are
available to the Agency in the event of default. |
7.1 Immediate Termination by the Agency. The Agency may terminate this Contract for any of the following reasons effective immediately without advance notice:
7.1.1 In the event the Contractor is required to be certified or licensed as a condition precedent to providing services, the revocation or loss of such license or certification will result in immediate termination of the Contract effective as of the date on which the license or certification is no longer in effect;
7.1.2 The Agency determines that the actions, or failure to act, of the Contractor, its agents, employees or subcontractors have caused, or reasonably could cause, a client’s life, health or safety to be jeopardized;
7.1.3 The Contractor fails
to comply with confidentiality laws or provisions;
7.1.4 The Contractor furnished any statement, representation or certification in connection with this Contract or the RFP which is materially false, deceptive, incorrect or incomplete.
7.2 Termination for Cause. The occurrence of or any one or more of the following events shall constitute cause for the Agency to declare the Contractor in default of its obligations under this Contract.
7.2.1 The Contractor fails to perform, to the Agency’s satisfaction, any material requirement of this Contract or is in violation of a material provision of this Contract, including, but without limitation, the express warranties made by the Contractor;
7.2.2 The
Agency determines that satisfactory performance of this Contract is
substantially endangered or that a default is likely to occur;
7.2.3 The Contractor fails to make substantial and timely progress toward performance of the Contract.
7.2.4 The Contractor becomes subject to any bankruptcy or insolvency proceeding under federal or state law to the extent allowed by applicable federal or state law including bankruptcy laws; the Contractor terminates or suspends its business; or the Agency reasonably believes that the Contractor has become insolvent or unable to pay its obligations as they accrue consistent with applicable federal or state law;
7.2.5 The Contractor has failed to comply with applicable federal, state and local laws, rules, ordinances, regulations and orders when performing within the scope of this Contract; or
7.2.6 The
Contractor has engaged in conduct that has or may expose the Agency to
liability, as determined in the Agency’s sole discretion.
7.2.7 The Contractor has infringed any patent, trademark, copyright, tradedress or any other intellectual property right.
7.3 Notice of Default. If there is a default event caused by the Contractor, the Agency shall provide written notice to the Contractor requesting that the breach or noncompliance be remedied within the period of time specified in the Agency’s written notice to the Contractor. If the breach or noncompliance is not remedied by the date of the written notice, the Agency may either:
7.3.1 Immediately terminate the Contract without additional written notice; or,
7.3.2 Enforce the terms and conditions of the Contract and seek any legal or equitable remedies.
If the Contractor defaults, the Agency must provide the Contractor with written notice demanding that the Contractor immediately cure the default. The Agency should decide how much time is reasonable to cure the breach of this Contract and specify the time period the Contractor will have to cure the breach in the written notice to the Contractor. You want to allow the Contractor and the Agency adequate time for notice as well as cure, but you also need to protect the Agency’s right to terminate and not incur substantial fees during the notice period. If the Contractor fails to cure the default within the time period specified in the written notice, the Agency can take whatever steps necessary to protect its rights. The notice of default should be prepared or reviewed by legal counsel. The notice should describe in detail the factual basis evidencing the default, the specific contractual provision or provisions that have been breached, and any prior notice given to the Contractor about poor performance. You should bear in mind that the notice of default will become evidence if the dispute goes to court.
The Contractor may ask to have the Contract include provisions for the Contractor to terminate the contract for cause. If the Contractor asks for this, you should consult with legal counsel regarding that request. |
7.4 Termination Upon Notice. Following, enter the number of days’ written notice, the Agency may terminate this Contract in whole or in part without the payment of any penalty or incurring any further obligation to the Contractor. Following termination upon notice, the Contractor shall be entitled to compensation, upon submission of invoices and proper proof of claim, for services provided under this Contract to the Agency up to and including the date of termination.
|
Under this provision, the Agency may terminate the Contract upon notice without the payment of any penalty or incurring further obligation. Such provisions are common in government contracts (although they are often called “termination for convenience” clauses). Termination upon notice means that the Agency can terminate the Contract for any reason or no reason at all. As drafted, only the Agency may terminate the Contract upon notice. You should decide how many days’ notice is appropriate given the services you are buying with the Contract. You should consider how much time you will need to find a replacement contractor, if any, when deciding how many days’ notice is appropriate. Contractors may object to this provision and request that they be given the ability to terminate the Contract upon notice as well. In this event, you should consult with your legal counsel. |
7.5 Termination Due to Lack of Funds or Change in Law. The Agency shall have the right to terminate this Contract without penalty by giving sixty (60) days’ written notice to the Contractor as a result of any of the following:
7.5.1 Adequate funds are not appropriated or granted to allow the Agency to operate as required and to fulfill its obligations under this Contract;
7.5.2 Funds are de-appropriated or not allocated or if funds needed by the Agency, at the Agency’s sole discretion, are insufficient for any reason;
7.5.3 The Agency’s authorization to operate is withdrawn or there is a material alteration in the programs administered by the Agency;
7.5.4 The Agency’s duties are substantially modified.
|
There are significant
constitutional limitations on the ability of state agencies to enter into
contracts that cross fiscal years. The
Iowa Constitution prohibits state agencies from binding the General Assembly
to appropriate funds in the future.
Article VII, Section 2 & 5 of the
Please note that the ability to terminate the Contract under this provision is not limited to just non-appropriation situations. The Agency has the ability to terminate the Contract in the event that there has been a statutory change impacting the ability of the Agency to continue performance of the contract. |
7.6 Remedies of the Contractor in Event of Termination by the Agency. In the event of termination of this Contract for any reason by the Agency, the Agency shall pay only those amounts, if any, due and owing to the Contractor for services actually rendered up to and including the date of termination of the Contract and for which the Agency is obligated to pay pursuant to this Contract. Payment will be made only upon submission of invoices and proper proof of the Contractor’s claim. This provision in no way limits the remedies available to the Agency under this Contract in the event of termination. However, the Agency shall not be liable for any of the following costs:
7.6.1 The payment of unemployment compensation to the Contractor’s employees;
7.6.2 The payment of workers’ compensation claims, which occur during the Contract or extend beyond the date on which the Contract terminates;
7.6.3 Any costs incurred by the Contractor in its performance of the Contract, including, but not limited to, startup costs, overhead or other costs associated with the performance of the Contract;
7.6.4 Any taxes that may be owed by the Contractor in connection with the performance of this Contract, including, but not limited to, sales taxes, excise taxes, use taxes, income taxes or property taxes.
|
This section sets forth the
limited remedies of a contractor in the event the Contract is terminated due
to lack of funds or change in the law.
A contractor’s remedy is limited to payment for services completed
prior to termination. No other
damages, such as claims for lost profits, are permitted. Such a limitation on damages is problematic
for some contractors, especially those contractors who are required to make
significant up-front investments at the beginning of the contract and those
costs are recovered over the term of the Contract. A good example is the landlord who is
required to make costly changes to the leased premises; the cost of leasehold
improvements are amortized over the life of the lease and those costs would
not be paid in the event that the Contract is terminated under Section
7.6. One solution suggested by
contractors is that the Agency agree to pay all or a percentage of the
up-front costs in the event the Contract is terminated under Section
7.6. Such requests are problematic
because they can be construed by the courts as being so burdensome that the
Agency would never exercise its right to terminate the Contract, making the
non-appropriation provision illusory. |
7.7 The Contractor’s Termination Duties. The Contractor upon receipt of notice of termination or upon request of the Agency, shall:
7.7.1 Cease work under this Contract and take all necessary or appropriate steps to limit disbursements and minimize costs, and furnish a report within thirty (30) days of the date of notice of termination, describing the status of all work under the Contract, including, without limitation, results accomplished, conclusions resulting therefrom, any other matters the Agency may require.
7.7.2 Immediately cease using and return to the Agency any personal property or materials, whether tangible or intangible, provided by the Agency to the Contractor.
7.7.3 Comply with the Agency’s instructions for the timely transfer of any active files and work product produced by the Contractor under this Contract.
7.7.4 Cooperate in good faith with the Agency, its employees, agents and contractors during the transition period between the notification of termination and the substitution of any replacement contractor.
7.7.5 Immediately return to the Agency any payments made by the Agency for services that were not rendered by the Contractor.
SECTION 8. CONFIDENTIAL INFORMATION
|
Services contractors often have access to or work with confidential data. It is, therefore, important for data privacy issues to be addressed up front and that the Contractor be required to maintain the confidentiality of the data. Some agencies (e.g. the Department of Human Service and the Department of Corrections) have special confidentiality concerns in some of their programs. If this is the case with your agency, you should consult with your legal counsel to determine whether you should tailor these confidentiality provisions to more closely suit your needs. |
8.1 Access to Confidential Data. The Contractor’s employees, agents and subcontractors may have access to confidential data maintained by the Agency to the extent necessary to carry out its responsibilities under the Contract. The Contractor shall presume that all information received pursuant to this Contract is confidential unless otherwise designated by the Agency. The Contractor shall provide to the Agency a written description of its policies and procedures to safeguard confidential information. Policies of confidentiality shall address, as appropriate, information conveyed in verbal, written, and electronic formats. The Contractor must designate one individual who shall remain the responsible authority in charge of all data collected, used, or disseminated by the Contractor in connection with the performance of the Contract. The Contractor shall provide adequate supervision and training to its agents, employees and subcontractors to ensure compliance with the terms of this Contract. The private or confidential data shall remain the property of the Agency at all times.
8.2 No Dissemination of Confidential Data. No confidential data collected, maintained, or used in the course of performance of the Contract shall be disseminated except as authorized by law and with the written consent of the Agency, either during the period of the Contract or thereafter. Any data supplied to or created by the Contractor shall be considered the property of the Agency. The Contractor must return any and all data collected, maintained, created or used in the course of the performance of the Contract in whatever form it is maintained promptly at the request of the Agency.
8.3 Subpoena. In the event that a subpoena or other legal process is served upon the Contractor for records containing confidential information, the Contractor shall promptly notify the Agency and cooperate with the Agency in any lawful effort to protect the confidential information.
8.4 Reporting of Unauthorized Disclosure. The Contractor shall immediately report to the Agency any unauthorized disclosure of confidential information.
8.5 Survives Termination. The Contractor’s obligation under this Contract shall survive termination of this Contract.
|
Among the most important provisions
of any contract are those related to indemnification. In the private sector, parties negotiate
very broad indemnification provisions that indemnify each other from claims
brought by the third parties. In the
public sector, on the other hand, there are significant constitutional and
statutory limitations on the ability of state agencies to indemnify
others. As a general rule, the State
of
You may wish to delete the indemnification section if the contract is between two state agencies. |
9.1 By the Contractor. The Contractor agrees to indemnify and hold harmless the State of Iowa and the Agency its officers, employees and agents appointed and elected and volunteers from any and all costs, expenses, losses, claims, damages, liabilities, settlements and judgments, including reasonable value of the time spent by the Attorney General’s Office, and the costs and expenses and reasonable attorneys’ fees of other counsel required to defend the State of Iowa or the Agency, related to or arising from:
|
This indemnification provision includes recovery for reasonable attorneys’ fees of the Attorney General’s Office or other counsel required to defend the Agency. In order to recover attorneys’ fees, the contract must so specify. Negotiation tip: there may be times that you may not want to include the ability to recover attorneys’ fees in an indemnification provision, principally because the Agency does not want to indemnify the Contractor for attorneys’ fees. |
9.1.1 Any breach of this Contract;
|
Some Contractors object to indemnifying the State of |
9.1.2 Any negligent, intentional or wrongful act or omission of the Contractor or any agent or subcontractor utilized or employed by the Contractor;
9.1.3 The Contractor’s performance or attempted performance of this Contract, including any agent or subcontractor utilized or employed by the Contractor;
9.1.4 Any failure by the Contractor to comply with the compliance with the Law provision of this Contract;
9.1.5 Any failure by the Contractor to make all reports, payments and withholdings required by federal and state law with respect to social security, employee income and other taxes, fees or costs required by the Contractor to conduct business in the State of Iowa;
9.1.6 Any infringement of any copyright, trademark, patent, trade dress, or other intellectual property right; or
9.1.7 Any failure by the Contractor to adhere to the confidentiality provisions of this Contract.
|
It is a good idea to include indemnification for any infringement of copyright, trademark, patent, trade dress or other intellectual property right, even when the subject matter of the contract does not deal with intellectual property matters. It is possible that the Contractor violated intellectual property laws and incorporated protected |